Preparing to Testify in Court

By Jodi McShan

For many, court is a scary place. You are not only giving major life decisions to another, but you are also laying your personal problems out there in public. When coming to family court, many clients and witnesses have never been before a judge prior to the hearing, and, as we learned as a child, knowledge is power. Testifying means that the attorney who called you as a witness asks you questions, and these are topics that you can prepare to answer. Remember, the other side’s attorney can then ask you questions as well. While you might be able to guess the questions and topics the other side may ask you, you can never be sure what will be asked. That is the scariest thing for many people.

Below are some great “rules” for testifying in court:

• Tell the Truth. Even if the truth is not the best facts for you, lies will be worse. Rely on your attorney to object and stop the testimony if able, and the attorney who called you as a witness can always ask you further questions to help explain your answer.
• Stop and Listen to the Question. When on the stand, instincts sometime kick in, and you do anything to make it all end as quickly as possible. A great technique is to stop, listen to the question, take a deep breath and repeat the question to yourself (silently), then answer. This helps calm your nerves and helps you think more clearly.
• Answer the question asked. If you are asked what highway you drove on, answer which highway. Do not tell the court what car you were driving or in which direction. Just answer the question. When you add additional facts, you are “opening the door” for more questions and maybe leading into areas that no one would originally look into.
• If you do not understand the question, ask for clarity. The court will not make you answer a question you do not understand. This does NOT mean you should play dumb. It does mean that if you do not understand what is being asked of you, then you should ask the attorney/person asking the question to ask the question a different way or clarify.
• “I don’t know” and “I don’t remember” are valid answers. Again, this is not a chance for you to game the system and play dumb. If you honestly do not know or do know remember, then that is your answer. Even if someone pushes you, if you do not know, do not guess or make up an answer.
• Do not talk over someone else. This is the fastest way to frustrate the court and court reporter (the nice person taking down everything being said). Even if you do not agree with what someone else is saying, let the attorneys handle it. Let the other person finish, pause, then answer.
• If someone objects, wait for the court to rule. You may have seen it on TV – “I object!” (in my best Elle Wood’s voice). You will hear both sides objecting to testimony, and then there may be a response from the other side to the objection. The judge will rule, and you should not answer until you have a ruling. If the judge sustains the objection, then you do not answer. If the judge overrules, then you answer the question. If in doubt, ask! The judge will not be offended if you ask if you should answer the question; in my experience, the judge would prefer you ask versus just start talking when you should not be answering.
• Do not argue with the person questioning you. When things get heated and an attorney is questioning harshly, a common reaction is to fight back. This only looks negatively on you. Let the attorneys handle the problems with questioning. Answer calmly and honestly. This will help show you as a rational person and make your testimony stronger.

Another question we often hear is “what should I wear?” My original answer used to be “what you would wear to church.” This means nicer than brunch clothes, but you are not going to a black tie affair. As a witness, you are not expected to arrive in a three-piece suit. Dress respectfully. No hats. No sunglasses. Conservative hair. No bare shoulders. Conservative length for dresses/skirts. Properly fitted slacks. No low-cut blouses. No shorts. Polo shirts are appropriate for men or button-downed shirts. You want to dress respectfully but not so formal that you feel uncomfortable.

Testifying is a stressful experience, but when you prepare yourself ahead of time you can feel in control and ready to take on the day. For more information, you can contact me at [email protected].